Sohanlal Naurange Vs State Of Chhattisgarh

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Page 1 of 28 IN (Criminal Appeal No.1600 of 2016)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1600 of 20 16

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[Arising out of judgment dated 26.11.2016, passed in Sessions Case No.83 of 2015 (State of Chhattisgarh v. Sohanlal Naurange and another), by the 1^st Additional Sessions Judge, Balod (C.G.)]

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Sohanlal Naurange, Son of Pusau Ram Naurange, aged about 45 years,

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Anjali Naurange, Daughter of Pusau Ram Naurange, aged about 30 years,

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[Both Resident of Village Achhoud, Police Station Ranchirai, District Balod (Chhattisgarh)]

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---- Appellants (In Jail)

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Versus

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State of Chhattisgarh, through Aarakshi Kendra- Ranchirai, District Balod (Chhattisgarh)

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---- Respondent

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------------------------------------------------------------------------------------------ For Appellants : Ms. Fouzia Mirza, Senior Advocate/ Panel Lawyer appointed through CG High Court Legal Services Committee assisted by Ms. Smita Jha, Advocate [ For Respondent : Mr. Arvind Dubey, Deputy Govt. Adv.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (05.03.2024)

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Sanjay K. Agrawal, J

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(1) By way of this criminal appeal filed under Section 374(2) of Cr.P.C., the two accused-appellants herein have invoked criminal appellate jurisdiction of this Court questioning the legality, validity and correctness of the impugned judgment of conviction

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and order of sentence dated 26.11.2016, passed by the 1^st Additional Sessions Judge, Balod, in Sessions Case No.83 of 2015, whereby they have been convicted and sentenced as under:

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Conviction Sentence U/s. 302 r/w S.34 of Imprisonment for life with fine of IPC (on three counts) Rs.1,000/- on each count by each (total Rs.3,000/- each). U/s. 307 r/w S.34 of R.I. for 10 years with fine of Rs.2,000/IPC each and, in default of payment of fine, additional R.I. for 03 months each. [All the sentences are directed to run concurrently]

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(2) The case of the prosecution as projected by the prosecution and accepted by the learned trial Court, in short, is that on 04.06.2015, at about 07:30 PM in the night, at Village Achhoud, within the ambit of Police Station Ranchirai, District Balod (CG), near the house of Mojanlal Khutel, both the accused/appellants herein shared common intention and, in furtherance thereof, assaulted Mojanlal Khutel, his wife- Yogita Khutel and his daughters- Ku. Tejasvini and Ku. Gamini @ Damini Khutel by means of hand, fist and iron knife, due to which, Mojanlal Khutel, Yogita Khutel and Ku. Tejasvini (hereinafter referred to as the “deceased persons”) suffered grievous injuries and died, whereas Ku. Gamini @ Damini Khutel (PW-02) suffered injuries sufficient to cause her death and, thereby, committed offences under Section 302/34 (on three counts) & 307/34 of IPC.

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(3) It is further case of the prosecution that the appellants and

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Page 3 of 28 IN (Criminal Appeal No.1600 of 2016)

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the deceased persons were neighbour to each other and, on the date and time of the offence, as appellant No.02-Anjali was quarreling with deceased-Yogita in her house, a dispute arose between them, wherein appellant No.01- Sohanlal [brother of the appellant No.02] all of a sudden came to the spot armed with knife and inflicted knife blow to the deceased persons as also injured- Ku. Gamini @ Damini Khutel (PW-02), due to which, the deceased persons suffered grievous injuries and died, whereas Ku. Gamini (PW-02) suffered injury sufficient to cause her death. In the said incident, appellant No.02-Anjali only caught hold of the hand of deceased-Yogita.

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(4) The aforesaid incident was reported to the police by Tarun Kumar Chandrakar (PW-01), upon which, the police registered dehati nalsi (Ex.P/01) and dehati merg intimations (Ex.P/02 & P/ 03) against the appellants and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/05A, Ex.P/05, Ex.P/16A, Ex.P/16 & Ex.P/19 and inquest proceedings were conducted vide Ex.P/06 & Ex.P/20. Information with regard to sudden and untimely death of the deceased persons were also registered vide Ex.P/41 to Ex.P/43 respectively. FIR was also registered by the police against the appellants vide Ex.P/34. Nazari naksha was prepared vide Ex.P/23. The dead-bodies of the deceased persons were sent for postmortem examination and, as per PM reports (Ex.P/29, Ex.P/

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28 & Ex.P/30), conducted by Dr. P. Akhtar (PW-09) and Dr. C.B. Prasad (PW-12) respectively, the cause of death of the deceased persons is shock and hemorrhage due to injury on their vital organ (i.e. intestine, live and small intestine respectively). InjuredGamini @ Damini (PW-02) was admitted to the hospital, wherein she was medically examined by Dr. Sumant Mishra (PW-08) and, as per her bed-head ticket (Ex.P/26), it has been opined that she suffered stab injury on abdominal. The aforesaid injury suffered by injured- Gamini @ Damini (PW-02) was also sent for query and, as per Query Report (Ex.P/25), it has been opined by Dr. Sumant Mishra (PW-08) that she could have died on account of said injury if she was not given treatment within time.

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(5) Further, during the course of investigation, the accusedappellants were arrested vide Ex.P/11 & Ex.P/12 respectively. Thereafter, memorandum statement of appellant No.01-Sohanlal was recorded vide Ex.P/07, pursuant to which, one blood-stained knife alongwith blood-stained clothes (i.e. one full-pant and one full-shirt) were seized vide Ex.P/10. The aforesaid seized knife was sent for query/examination to an expert and, as per MLC report (Ex.P/32), conducted by Dr. C.B. Prasad (PW-12), it has clearly been opined that the injuries suffered by the deceased persons as also by injured- Gamini @ Damini (PW-02) were caused by said knife and, in which, stains of human blood are also visible. Further, from the place of incident, blood stained soil

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and plain soil were seized vide Ex.P/08. Cotton swab containing blood, plain cotton swab and one green color stall ( chunri ) belonging to deceased-Yogita were seized vide Ex.P/9. Clothes of deceased persons-Yogita and Mojanlal were also seized vide Ex.P/ 37 and Ex.P/36 respectively. The aforesaid seized articles alongwith other articles were sent for chemical examination to the State Forensic Science Laboratory, Raipur and, as per FSL report (Ex.P/46), it has clearly been opined that blood stains were found on the knife, whereas stains of human blood were found on the clothes (full-pant and full-shirt), both seized pursuant to the memorandum statement of the appellant No.01-Sohanlal. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellants herein in the competent criminal Court having jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the accusedappellants abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

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(6) The prosecution in order to prove its case examined as many as 17 witnesses and exhibited 49 documents apart from Final Report, whereas the accused-appellants in support of their defence, though not examined any witness, but exhibited 01 document.

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(7) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict both the appellants herein for offences under Sections 302/34 (on three count) and also under Section 307/34 of IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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(8) Ms. Fouzia Mirza, learned Senior Counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellants herein for offences under Sections 302/34 (on three count) and 307/34 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. She further submits that so far as appellant No.01Sohanlal is concerned, his case would fall within the purview of Exception 4 to Section 300 of IPC for the reason that as per the case of the prosecution, on the date and time of the offence, since appellant No.02-Anjali was quarreling with deceased-Yogita in her house, a dispute arose between them, in which, appellant No.01Sohanlal, who is brother of the appellant No.02, all of a sudden came to the spot armed with knife and assaulted the deceased persons as also injured- Ku. Gamini @ Damini Khutel (PW-02), due to which, the deceased persons suffered grievous injuries and died, whereas Ku. Gamini (PW-02) suffered injury sufficient to cause her death. As such, it is quite clear that there was no

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intention or premeditation on the part of the appellant No.01Sohanlal to cause murder of the deceased persons and his act is culpable homicidal not amounting to murder, therefore, the conviction of appellant No.01-Sohanlal for offence under Section 302 of IPC can be altered/converted to an offence under Section 304 (Part-I or Part-II) of IPC and, since he is in jail from 06.06.2015, i.e. more than 08 years, he be sentenced for the period already undergone by him. Hence, the appeal of appellant No.01-Sohanlal deserves to be allowed in full or in part.

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(9) Ms. Fouzia Mirza, learned Senior Counsel further submits that so far as appellant No.02-Anjali is concerned, she is entitled for acquittal on the basis of benefit of doubt, as no specific overtact has been alleged against her. All the injuries caused over the bodies of the deceased persons as also to the injured- Gamini @ Damini (PW-02), were caused by the appellant No.01 under anger and in heat of passion and she has no role to play in the incident in question. Nothing incriminating has been seized from the possession of the appellant No.2-Anjali and she has only been implicated with the aid of Section 34 of IPC, which does not established in light of the decision of the Supreme Court in the matter of Jasdeep Singh @ Jassu v. State of Punjab1 . Hence, the appeal of appellant No.02-Anjali deserves to be allowed and she is liable to be acquitted of the said charges on the basis of benefit of

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1 (2022) 2 SCC 545

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doubt.

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(10) Per-contra , Mr. Arvind Dubey, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view of prosecution witnesses coupled with other material/evidence available on record, the learned trial Court has rightly convicted both the appellants for offences under Section 302/34 (on three counts) & 307/34 of IPC and, the manner in which the appellants have caused injuries to the deceased person as also to the injured person without there being any rhyme or reason, they are are not entitled for acquittal or conversion of their punishment, therefore, the present appeal deserves to be dismissed.

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(11) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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(12) The first and foremost question is as to whether the death of the deceased persons was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem reports (Ex.P/29, Ex.P/28 & Ex.P/ 30), conducted by Dr. P. Akhtar (PW-09) and Dr. C.B. Prasad (PW12) respectively, wherein the cause of death of the deceased

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persons is opined to be shock and hemorrhage due to injury on their vital organ (i.e. intestine of deceased-Mohjanlal, liver of deceased-Yogita and small intestine of deceased-Tejasvini), which is duly proved by the statements of Dr. P. Akhtar (PW-09) and Dr. C.B. Prasad (PW-12). Accordingly, taking into consideration the postmortem reports (Ex.P/29, Ex.P/28 & Ex.P/30) and the statements of Dr. P. Akhtar (PW-09) and Dr. C.B. Prasad (PW-12), who have conducted postmortem of the dead-bodies of the deceased persons, we are of the considered opinion that the death of the deceased persons is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(13) Now the next question would be whether the accusedappellants herein are the perpetrator of the crime in question or not ?

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(14) In order to answer this question, considering the nature of evidence and specific overt-act alleged against each of the appellants, we deem it appropriate to consider this common appeal of both the appellants one by one.

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Appeal of Appellant No.01- Sohanlal Naurang

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(15) In the instant case, Ku. Gamini @ Damini (PW-02), who is daughter of the deceased persons- Mohjanlal and Yogita and

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sister of deceased- Tejasvini, is the injured eye-witness to the incident. In the incident in question, she has also suffered stab injury on her abdominal, which was sufficient to cause her death. The said fact is duly proved by her injury report-cum-bed head ticket (Ex.P/26), wherein Dr. Sumant Mishra (PW-08), who medically examined her upon her admission to the hospital, has clearly opined that she suffered stab injury on abdominal. Further, the aforesaid injury suffered by injured- Gamini @ Damini (PW-02) was also sent for query and, as per Query Report (Ex.P/25), it has been opined by Dr. Sumant Mishra (PW-08) that she could have died on account of said injury if she was not given treatment within time. The aforesaid injury report-cum-bed head ticket (Ex.P/26) and Query Report (Ex.P/25) were duly supported by the same of Dr. Sumant Mishra (PW-08), therefore, same seem to be trustworthy and it is quite clear that in the incident in question Ku. Gamini @ Damini (PW-02) has suffered injury which was sufficient to cause her death.

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(16) Further, Ku. Gamini @ Damini (PW-02) in her statement before the Court has clearly stated the appellants are her neighbour and, on the date and time of the offence, when appellant No.02-Anjali was quarreling with her mother-Yogita (deceased) in her house, all of a sudden, appellant No.01Sohanlal [brother of the appellant No.02] armed with knife came to the spot and incidentally caused knife blow to her as also to

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her father, mother and sister (deceased persons). Ku. Gamini @ Damini (PW-02) was subjected to lengthy cross-examination, but nothing could be extracted from her to hold that she has not seen the incident or telling lie before the Court in order to falsely implicate the appellants herein and remained consistent in her statement that she is the eye-witness and seen the incident in question. As such, the testimony of Ku. Gamini @ Damini (PW-02) inspire confidence and can be relied upon to convict appellant No.01-Sohanlal more particularly when as per PM reports (Ex.P/29, Ex.P/28 & Ex.P/30), the cause of death of the deceased persons is opined to be shock and hemorrhage due to injury (puncture wound) on their vital organ (i.e. intestine of deceasedMohjanlal, liver of deceased- Yogita and small intestine of deceased- Tejasvini).

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(17) Moreover, in the case at hand, pursuant to the memorandum statement of the appellant No.01- Sohanlal recorded vide Ex.P/07, weapon of the offence i.e. knife alongwith blood-stained clothes (i.e. full shirt and full pant) were seized vide Ex.P/10, in which, as per FSL report (Ex.P/46), stains of blood and human blood respectively were found. The aforesaid seized knife was also sent for query/examination to an expert and, as per MLC report (Ex.P/32), conducted by Dr. C.B. Prasad (PW-12), it has clearly been opined that the injuries suffered by the deceased persons as also by injured- Gamini @ Damini (PW-02)

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were caused by said knife and, in which stains of human blood are visible. Therefore, the recovery of aforesaid articles from the appellant No.01 is an important piece of incriminating circumstance against him that too when witnesses to said seizure and memorandum, namely, Tarun Kumar Chandrakar (PW-01) and Dr. Bedam Singh Sahu (PW-03) have duly supported the case of the prosecution. Thus, on the basis of aforesaid evidence available on record, it is quite clear that it is appellant No.01Sohanlal who on the date and time of the offence, assaulted the deceased persons as also injured- Gamini (PW-02) by means of knife, due to which, deceased persons suffered grievous injuries and died, whereas injured- Gamini (PW-02) suffered grievous injury which was sufficient to cause her death and, therefore, the leaned trial Court is absolutely justified in holding appellant No.01-Sohanlal to be the perpetrator of the crime in question. We hereby hold accordingly.

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(18) Now, the submission that has been vehemently raised on behalf of appellant No.01-Sohanlal is that his case would fall within the purview of Exception 4 to Section 300 of IPC and he is liable to be convicted for offence under Section 304 (Part-I or PartII) of IPC and not under Section 302 of IPC needs to be considered.

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(19) In order to consider the pleas raised by learned Senior

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(Criminal Appeal No.1600 of 2016)

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Counsel for the appellant No.01, it would be appropriate to notice

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Exception 4 to Section 300 of IPC, which states as under:-

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“Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

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(20) The Supreme Court in the matter of Gurmukh Singh v.

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State of Haryana 2 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of

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IPC, which state as under :-

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“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(c) The intention/knowledge of the accused while inflicting the blow or injury;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused without premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting

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2 (2009) 15 SCC 635

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the injury and the force with which the blow was inflicted;

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(I) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.”

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(21) Further, the Supreme Court in the matter of Arjun v. State

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of Chhattisgarh 3 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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3 (2017) 3 SCC 247

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(Criminal Appeal No.1600 of 2016)

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“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7)

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“7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

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“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to

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make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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(22) Reverting to the facts of the present case in light of the decision rendered by the Supreme Court in the matter of Arjun (supra), it is quite vivid that Exception 4 to Section 300 of IPC would be invoked only if the four necessary ingredients of the same are found to be proved/established i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. In the instant case, although there is no such evidence brought on record with regard to the existence of relationship between the appellant No.01 and the deceased persons and neither any evidence of previous enmity or dispute existing between them has been brought on record, however, on the date

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and time of the offence, when appellant No.02- Anjali was quarreling with deceased- Yogita, all of a sudden the appellant No.01, who is brother of the appellant No.02, same over the spot armed with knife and assaulted three deceased persons one by one on their vital parts, due to which they suffered grievous injuries and died, which goes to show that the appellant No.01 must have had intention and premeditation to cause death of the deceased persons and there was no sudden quarrel/fight that took place between them. Therefore, it is quite clear that the incident in question did not happen in heat of passion. Moreover, since the deceased persons, who were unarmed simple family members, residing in their house, the appellant took full advantage of the situation and assaulted them and inflicted grievous injuries by knife, a deadly weapon, that too on their vital parts, knowing fully well that the deceased persons would die. As such, considering the entire evidence available on record, we are of the considered opinion that the four necessary ingredients to constitute a case within the purview of Exception 4 to Section 300 of IPC are not satisfied/attracted in the present case and, therefore, the argument raised on behalf of the appellant No.01 that his case would fall under Exception 4 to Section 300 of IPC is liable to and is hereby rejected.

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(23) Consequently, the learned trial Court is absolutely justified in convicting the appellant No.01-Sohanlal for offences under

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Section 302 of IPC (on three counts) for having committed murder of three deceased persons as also under Section 307 of IPC for causing grievous injury to Gamini (PW-02) which was sufficient to cause her death. We hereby hold accordingly.

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Appeal of Appellant No.02- Anjali Naurange

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(24) In the case at hand, as the appellant No.02- Anjali has been convicted with the aid to Section 34 of IPC, therefore, the question would be whether Section 34 of IPC is attracted in the facts and circumstances of the present case to convict the appellant No.02 for offence under Sections 302 & 307 of IPC ?

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(25) At this stage, it would be appropriate to notice Section 34 of the IPC which reads as thus: -

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“ 34. Acts done by several persons in furtherance of common intention .—When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

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(26) A focused glance of the aforesaid provision would show that the essence of Section 34 of the IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result and such consensus can be developed at the spot also. Thus, Section 34 is intended to cover a situation wherein the accused persons have done something with common intention to constitute a criminal act.

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(27) In the matter of Barendra Kumar Ghosh v. King Emperor 4,

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it has been held as follows: -

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“... Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it.”

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(28) In the matter of Mahbub Shah v. King Emperor 5, it has

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been held as under:-

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“... Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say 'the common intentions of all', nor does it say 'an intention common to all'. Under the section the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone .”

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(29) Thereafter, the Constitution Bench of the Supreme Court in

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the matter of Mohan Singh v. State of Punjab 6, while dealing

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with the scope of Section 34 of the IPC, held as under: -

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“13. ... Like Section 149, Section 34 also deals

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4 AIR 1925 PC 1

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5 AIR 1945 PC 118

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6 AIR 1963 SC 174

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with cases of constructive liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.”

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(30) In the matter of Suresh v State of U.P. 7, Thomas, J, speaking for the Supreme Court has held two conditions precedent which are imperative for applying Section 34 of the IPC, which are as under: -

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“23. Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.”

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(31) In the matter of Lallan Rai v. State of Bihar 8, Their Lordships of the Supreme Court while relying upon the dictum

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laid down in Barendra Kumar Ghosh (supra) and Mohan Singh

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7 (2001) 3 SCC 673

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8 (2003) 1 SCC 268

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(supra), have held that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It has been stated therein that such consensus can be developed on the spot, but in any case, such a consensus must be present in the commission of the crime itself.

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(32) In the matter of Nagaraja v. State of Karnataka 9, Their Lordships of the Supreme Court have held that to impose vicarious liability under Section 34 of the IPC: (1) common intention, and (2) participation of accused in the commission of an offence must be proved, and further held that prosecution is bound to prove the factum of common intention amongst the accused persons.

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(33) In the matter of Virendra Singh v. State of Madhya Pradesh 10, Their Lordships of the Supreme Court have held that liability under Section 34 of the IPC can arise only when two conditions stand fulfilled i.e. firstly, mental element or intention to commit criminal act conjointly with another or others; and secondly, actual participation in one form or the other in commission of crime. Section 34 is intended to cover a case where a number of persons act together and on facts of case it is not possible for prosecution to prove as to which of the persons

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10 (2010) 8 SCC 407

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9 (2008) 17 SCC 277

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who acted together, actually committed the case. Under Section 34, it is the intention to commit the crime and accused can be convicted only if such intention has been shared by all accused.

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(34) In the matter of Syed Yousuf Hussain v. State of Andhra Pradesh 11, the Supreme Court has held that to get Section 34 of the IPC attracted, certain conditions precedent are to be satisfied. The act must have been done by more than one person and they must have shared a common intention either by omission or commission in effectuating the crime. It is always not necessary that every accused must do a separate act to be responsible for the ultimate criminal act. What is required is that an accused person must share the common intention to commit the act.

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(35) Further, in the matter of Vijendra Singh v. State of Uttar Pradesh 12, Their Lordships of the Supreme Court have reiterated the principles of law for applicability and scope of Section 34 of the IPC and summarised the principles therein by holding as under: -

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“28. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common

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11 (2013) 4 SCC 517

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12 (2017) 11 SCC 129

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intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See Kripal v. State of U.P.¹³ .) In Bharwad Mepa Dana v. State of Bombay¹⁴ , it has been held that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.”

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(36) Recently, in the matter of Jasdeep Singh @ Jassu (supra) their Lordships of the Supreme Court considered the earlier decision on the point and held that what is required is the proof of common intention and there may be an offence without common intention, in which case Section 34 of IPC does not get attracted and observed in Paras-22 to 27 as under:

¶149

14 AIR 1960 SC 289

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13 AIR 1954 SC 706

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“ 22. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.

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23. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.

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24. Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case-to-case basis. 25. The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.

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26. There may be cases where all acts, in general, would not come under the purview of Section 34 IPC,

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but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offence. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.

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27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.”

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(37) Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in above mentioned judgments, it is quite vivid that as per the statement of Gamini @ Damini (PW-02), since appellant No.02-Anjali and deceased- Yogita were quarreling and, on account of which, dispute arose and incident took place in the

¶160

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house of Gamini @ Damini (PW-02), wherein all of a sudden the appellant No.01-Sohanlal came there armed with knife and inflicted knife injury to the deceased persons, due to which they died. Gamini @ Damini (PW-02) has also stated that the appellant No.02-Ajanli has caught hold the deceased persons in order to facilitate the appellant No.01 to inflict knife blow, however, when she was confronted in her statement (Ex.P/14) recorded before the Naib Tehsildar-cum-Executive Magistrate, she has clearly stated that she has not stated that the appellant No.02 had caught hold of the deceased persons in order to facilitate the appellant No.01 to cause injuries to them. As such, no specific overt-act in the incident in question has been proved against the appellant No.02-Anjali for the reason that she was only engaged in quarreling with deceased-Yogita and, even though the prosecution was under obligation to prove that the appellant No.02 has committed the overt-act or she was having knowledge or that A1 might have caused fatal injuries resulting into the death of the deceased persons, but the fact of common intention against the appellant No.2-Anjali has not been proved/established at all. Therefore, as the fact of common intention against the appellant No.02 has not been established and evidently no weapon/incriminating article has been seized from the possession of the appellant No.02, she is liable to be acquitted of the charges on the basis of benefit of doubt and the learned trial Court has

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committed grave legal error in convicting the appellant No.02Anjali for the offences under Section 302 (on three counts) & 307 with the aid of Section 34 of IPC. We hereby hold accordingly.

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(38) In view of foregoing analysis, this Court came to the following conclusions:

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(i) the conviction and sentences of appellant No.01- Sohanlal Naurang for offences under Section 302 (on three counts) of IPC as also under Section 307 of IPC, passed by the learned trial Court by impugned judgment dated 26.11.2016, is hereby affirmed/upheld as the same is well merited and does not warrants any interference by this Court.

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(ii) the conviction and sentences of appellant No.02- Anjali Naurang for offences under Section 302/34 (on three counts) of IPC as also under Section 307/34 of IPC alongwith fine sentences and default stipulation, passed by the learned trial Court by impugned judgment dated 26.11.2016, is hereby set aside. She is acquitted of the said charge on the basis of benefit of doubt. Since the appellant No.02 is in jail from 06.06.2015, we direct that she be released from jail forthwith, if not required in any other matter/case.

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(39) Consequently, this criminal appeal is allowed so far is

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relates to appellant No.02-Anjali Naurang and stands dismissed so far it relates to appellant No.01-Sohanlal Naurang .

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(40) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) Sanjay Kumar Jaiswal) Judge Judge

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s@if

Sohanlal Naurange v. State Of Chhattisgarh

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Sohanlal Naurange v. State Of Chhattisgarh

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